On appeal from the judgment of Justice Nancy Backhouse of the Superior
Court of Justice dated 28 April 2008.

Mr. Lahrkamp, a unit owner in a condominium, appealed an order obtained
by his condo corporation regulating and restricting the exercise of his
rights to examine condominium records and to obtain copies of them.

The application
The board of directors applied for the order on the basis that the Mr.
Lahrkamp had made and pursued an unrelenting stream of requests for
records to the point that his conduct, in effect, amounted to
harassment of its management staff.

In its application, the board sought orders restraining Mr. Lahrkamp
from: harassing, communicating, or having contact with any member of
the board, management staff, security personnel, or any other employee
of the condominium; requesting further records from the condo; and,
coming within 25 feet of the management office.

The board also requested that Mr. Lahrkamp be ordered to either
dismantle or render inactive his Internet website.

The judgement
The application judge found that Mr. Lahrkamp’s conduct to the staff of
the management office and to a member of the Board of Directors
amounted to harassment.”

She noted that although the Act did indeed give Mr. Lahrkamp the right
to examine the corporation’s records, he was not entitled to abuse that
right “by conducting a campaign by siege against the management office
and directors.”

On the basis of these findings, the application judge made an order
restraining Mr. Lahrkamp from:

1.

communicating with any employee
of the management office or member of the Board of Directors, other
than in writing; and

2.

entering or coming within 25
feet of the condos management office.

3.

Mr. Lahrkamp must request in
writing any records of the corporation that he wishes to receive; he
could not submit more than one request for the same record; and, if he
did submit more than a single request, the corporation would not be
required to provide a further response;

4.

Mr. Lahrkamp must pay in advance
the photocopying charges for any document he requested; and

5.

Mr. Lahrkamp was not permitted
to review any records in advance of a request for production.

Costs
The application judge awarded the corporation costs in the amount of
$30,000, and granted the respondent a further $15,000 as “additional
actual costs” under Section 134(5) of the Act.

The appeal
Mr. Lahrkamp appeals the application judge’s decision on the merits, as
well as from her costs disposition. He advances several arguments.

The appeals court accepted that the application judge did not intend to
make a finding of actionable harassment. The record before the
application judge made clear that the relationship between Mr. Lahrkamp
on one side, and the board of directors and management staff, on the
other, was extremely strained.

That strained relationship, and Mr. Lahrkamp’s contribution to it,
provided a basis for an order regulating the manner in which he should
exercise his rights under the Act. Such an order was justified and
required to ensure the parties’ relationship remained workable.

On the particular facts of this case, the motion judge’s remedy, while
is entitled to deference, is too extreme to be sustained.

Given the corporation's acknowledgement that Mr. Lahrkamp's behaviour
did not amount to actionable harassment, we were not persuaded that the
orders made by the application judge prohibiting Mr. Lahrkamp from
exercising his statutory right to examine the condo’s records, coming
within 25 feet of its management office, or communicating with members
of the board of directors or management staff other than in writing,
were supportable.

Accordingly, we would set aside these injunctive aspects of the
application judge’s order.

We would leave in place the application judge’s orders that Mr.
Lahrkamp make his requests to examine documents or for copies thereof
in writing, that he not make more than one request with respect to the
same record, and that he pay in advance the reasonable photocopying
charges of any copies of records that he requests.

The appeals court stated that it is for the board to decide what notice
is reasonable and what is a reasonable time and place for Mr. Lahrkamp
to examine the records.

Judgment
We would allow the appeal in part and set aside the injunctive
components of the application judge’s order as discussed above and
dismiss the remainder of the appeal.

Costs
Counsel agreed that the costs of the successful party on the appeal
should be fixed in the amount of $30,000, inclusive of disbursements
and GST. Given Mr. Lahrkamp’s partial success, costs of the appeal are
fixed in his favour in the amount of $20,000, inclusive of
disbursements and GST.

The result of the appeal changes the relative success of the parties on
the application. The costs of the application are varied and fixed in
the amount of $20,000, inclusive of disbursements and GST, in favour of
the corporation. This amount includes the “additional actual costs”
factor under s.134(5) of the Condominium Act.

The plaintiff in this action, pursuant to section 55 of the Condominium
Act ("the Act") seeks damages of $500.00 based upon the alleged failure
of the defendant to provide certain records set out in the plaintiff's
amended statement of claim. The plaintiff also seeks production of
these records for examination. The defendant takes the position that
the plaintiff is not entitled to the records because:

1.

the Act inferentially requires
the plaintiff to provide a reason for every requested record (see
subsection 55(3));

2.

the Act does not allow for the
release of certain exempted documents (see sub clauses 55 (4)(b) and
55(4)(c)); and

3.

the Act permits refusal of
records if a reasonable excuse exists for not providing the said
records (see subsections 55(8) and 55(10)).

There appears to be no dispute that the plaintiffs requests for records
were made in writing, and the plaintiff requested in writing the
$500.00 penalty provided by subsection 55(8) of the Act.

The plaintiff and defendant had widely divergent opinions as to how
subsection 55(3) should be interpreted. The defendant felt that every
request for records must be accompanied with a reason for the requested
records, which reasonably relates to the purposes of the Act. The
plaintiff opined that the records were an "open book" for the
condominium owners.

I do not agree with the blanket proposal of the defendant that every
request for documents must be accompanied by reasons for the request.
While I agree with the defendant's position that the Board is charged
with the duty of "balancing the private and communal interests of the
unit owners", I do not believe that every request automatically
requires a reason for the request. A reason reasonably related to the
purposes of the Act for some requested documents may be self evident
from the surrounding facts, or may be reasonably inferred from the
nature of the record requested. The right of a corporation to refuse
records may be appropriate where the actual motivation behind the
request is being challenged, or the burden and expense to the
corporation is in issue. To create a universal rule to apply to every
conceivable request is impossible. It is necessary to look at the facts
surrounding each request to determine whether the condominium
corporation had a reasonable excuse in not providing the records for
examination.

Each record requested by the plaintiff will be considered separately
unless otherwise noted.

1.
Front Lobby Expenditures, Letters of Representation and
2006 General Ledger
The request for the above noted items clearly involve a significant
burden and expense to the defendant. The plaintiff refused to provide a
reason for these documents claiming that the Act did not require him to
provide one.

Despite the fact that the defendant followed proper accounting
practices as set out in the Act, the evidence at trial showed that the
plaintiff wanted to satisfy himself beyond standard auditing procedures
that everything was in order.

From that perspective the plaintiff was on a pure "fishing expedition"
without a shred of evidence to support his suspicion of impropriety in
regard to the front lobby expenditures, any other audited expenditure,
or the letters of representation.

The weak basis for the requested records together with the burden on
the defendant, both in time and money, allows me to conclude that the
defendant had reasonable excuse not to provide the aforementioned named
records.

2. Records
Relating to Suite 1407 (the Plaintiff's residence) from 2003
I find that the defendant had a reasonable excuse to deny these records
on the basis that a general search would have been expensive and too
time consuming for the defendant. The plaintiff again did not provide
reasons to counter the defendant's position in denying the records.

3.
Owner List
The request for the owner list was properly denied by the defendant.
Subclause 55(4)(c) as a general rule exempts the right to examine
records relating to specific units or owners. The plaintiffs reason for
wanting the list was described as a need to communicate with others.

The reason provided was clearly too vague and infringes on the privacy
rights of the communal owners.

Before dealing with the remaining record requests, it is necessary for
me to comment on the exception in subclause 55(4)(b) as discussed in
the Divisional Court case of Fisher v. Metropolitan Toronto Condominium
Corp. 596, 2004
CarswellOnt 6242. The court in that case stated that the litigation
privilege in subclause 55(4)(b) can be claimed if litigation was being
contemplated by the party requesting the records, but that the
privilege applied only to records that related to the contemplated
litigation.

The facts of that case are clearly distinguishable from the facts of
this case. In Fisher, the court was satisfied on the facts that the
requested records sought related to litigation that was being
contemplated by the plaintiff at the time the request was made, and
therefore were exempt under subclause 55(4)(b).

4.
Proxies and Ballots used at the AGM of 2009 and 2010
I am unable to conclude on the evidence that the request for proxies
and ballots are connected to the plaintiff's desire to commence
litigation as alleged by the defendant.

Although the defendant attempted to portray the plaintiff as a
litigious person, I cannot conclude on a balance of probabilities that
the examination of these records in itself is being done for the
purpose of commencing litigation.

The plaintiff made it clear in his e-mail of August 18th, 2009 that he
wanted the proxies and ballots for "validation of election results"
(see Exhibit 12, Tab 1, page 53). This statement alone does not allow
me to conclude that litigation was likely to ensue.

The reason provided was valid and inferentially applied to the
plaintiff's request for the year, 2010 as the plaintiff was an
unsuccessful candidate for the Board in 2009 and 2010. The 2010 meeting
had a significant number of proxies (75-80).

The plaintiff's worry about the 2009 results stemmed partially from his
concern over the April 17th, 2009 newsletter referencing the 2009
Annual General Meeting (AGM) where the plaintiff is described as
somebody who if elected would be virtually impossible to work with.

The defendant took the position that the plaintiff waived his right to
complain regarding the proxies since he was given an opportunity to
examine the said proxies but chose not to do so. The plaintiff claimed
that his right to examine was subject to an improper condition, that
being that he had to review the proxies in a separate room thus missing
the AGM.

I am not prepared to accept the evidence of the plaintiff that the
defendant was given an unconditional choice to review the proxies and
therefore the defendant cannot rely on the defence of waiver or
estoppel.

Furthermore, I find that 'Rules of Order' as set out in "Nathan's
Company Meetings" are guidelines only, and as such I am not convinced
that the Rules of Order set out in that text have universal
applicability to the facts at hand.

5.
Notices of House Rules
Subsection 58(6) of the Act entitles owners to a notice of a made,
amended or repealed house rule.

Accordingly, the entitlement of the plaintiff to such a record is an
example of a request where a reason should not initially have to
accompany the request.

The plaintiff's concern about the validity of the house rules was
evident to the defendant, when the defendant was unable to satisfy the
plaintiff of the existence of a documented house rule regarding the
restriction on dogs, and the inability of the defendant to properly
explain away the discrepancy in two differently worded rules concerning
the number of cats allowed.

The defendant was unable to provide me with a reasonable excuse for not
providing records of the house rules to the plaintiff.

6.
Board of Directors Meetings -- December 4, 2007 to Present
The availability of minutes of the Board meetings seems so fundamental
to the rights of the individual unit own-ers, that I see no basis
initially that a reason should be provided.

If the corporation claims to have a reasonable excuse not to provide
these records then they must establish a foundation to refuse the
request (e.g. communal rights are being infringed, or a statutory
exemption applies).

The evidence does not disclose that the defendant had a reasonable
excuse to refuse the plaintiff's request for the minutes in question.

Opinion
The present action could have been avoided had the plaintiff and
defendant been able to communicate with each, other in a manner which
would have allowed them to appreciate each others concerns, and the
basis for the position they were taking.

The legislation does not specifically require a reason for every
request, nor a reason for every refusal of a record.

Suffice it to say, that in order to avoid a judicial determination
under subsections 55(8) and 55(10), each side must be prepared to have
a rational, open and sympathetic dialogue of their respective potential
competing interests. Without such a dialogue, avoidance of a court
application is likely to be remote. Based on the foregoing I order as
follows:

Judgment
(a) Judgment for the plaintiff for $500.00 plus court
costs of $175.00 and prejudgment interest at court rate from September
1, 2009; and

(b) The defendant to produce for examination the
proxies and ballots used at the AGM of 2009 and 2010, the minutes of
the board of directors meeting from December 4, 2007 to the present and
all notices of house rules as provided in subsection 58(6) of the Act.
All such records are subject to the orders made by Justice Backhouse
dated April 28, 2008.

Mr. Lahrkamp sought election as a candidate to the Board of
Directors of the corporation. Mr. Lahrkamp was not elected. Following
the election, he requested access to the proxies and ballots in order
to validate the
election results.

The corporation refused to provide Mr. Lahrkamp with access to the
proxies and ballots that reflected the votes cast as part of the
election. As a result, Mr. Lahrkamp brought an action in the Small
Claims Court for an order requiring their production.

The judge ordered that the proxies and ballots used in the election, as
well as other records of the corporation be produced to Mr. Lahrkamp.

Redacting the
proxies
After the judgment was rendered and the appeal period had expired, the
corporation brought a motion to vary the judgment. It sought to add a
term that the proxies were to be redacted by deleting names and
signatures of the owner, and the unit number from each proxy. The judge
allowed the motion and varied the judgment accordingly.

Mr. Lahrkamp appeals the variation and seeks to reinstate the judgment
as originally issued. He seeks production of the proxies without
redaction.

Jurisdiction
The corporation stated that this Court has no jurisdiction to consider
this appeal. The Courts of Justice Act, R.S.O. 1990, c. C.43
provides for appeals from the Small Claims Court. Insofar as it is
relevant here, it states:
An appeal lies to the Divisional Court from a final order of the Small
Claims Court in an action, (a) for the payment of money in excess of
the prescribed amount, excluding costs, … (Courts of Justice Act,
supra, s. 31)

The problem is that the original judgment is not the order from which
an appeal is now being taken. The Notice of Appeal makes clear that the
order being appealed is the one which varied the trial judgment to
allow for the redaction of the proxies.

The Small Claims Court is designed to be an expeditious and informal
forum for the resolution of disputes. The idea is that the disputes it
has jurisdiction to deal with are to be dealt with quickly, cheaply and
with less reliance on formal rules. The limited right to appeal is
consistent with this approach.

Quite apart from whether this Court has jurisdiction to consider an
appeal, the position of Mr. Lahrkamp is that the Small Claims Court
judge had no jurisdiction to place any term or condition on any order
requiring the production of records of the condominium corporation. Mr.
Lahrkamp referred to the Condominium Act, 1998, supra, s. 55(10), which
says:
If a corporation without reasonable excuse does not permit an owner or
an agent of an owner to examine records or to copy them under this
section, the Small Claims Court may order the corporation to produce
the records of examination.

Based on this, counsel for Mr. Lahrkamp submitted that a Small Claims
Court judge has only two options: he or she may (1) order or (2) deny
production.

This is too narrow a reading of the Condominium Act. It fails to
account for the authority provided to the Small Claims Court judge, by
the rules applicable to that court.

The Courts of Justice Act, s. 25 provides the following direction:
The Small Claims Court shall hear and determine in a summary way all
questions of law and fact and may make such order as is considered just
and agreeable to good conscience.

The Small Claims Court judge would have the jurisdiction to vary or
clarify an order previously made.

When the corporation came to act on the order it became concerned that
it would have to redact the identity of the individual unit owners or
be in breach of the Condominium Act, 1998, s. 55(4)(c).

The Mr. Lahrkamp refused to accept the redaction and, within an email
exchange, asked whether the corporation planned to bring a motion “for
clarification”. The judgment made with respect to the motion begins
with the phrase: “the defendant has brought a motion for clarification
…”.

The reasons making the clarification accept the concern that the
redaction would serve to protect the privacy rights of the other
owners. There is nothing to suggest that this is not a valid
consideration for a proper resolution to a problem with the order, that
became apparent after it had been issued.

In any event, I find that the Small Claims Court judge had the
jurisdiction to clarify the order. There is no reason why the
clarification should be set aside.

Costs
For oral reasons delivered today, the appeal is dismissed. Costs are
sought on a full indemnity scale in the amount of $10,265.83. It is
said the appeal was necessary and that the issue of jurisdiction was
raised at the outset. Counsel for the Mr. Lahrkamp suggests that costs
on a partial indemnity scale are more appropriated and that these
should be reduced to account for the time this appeal should reasonably
have taken.

On this basis costs would be $5,432.38. As a matter of policy, the
Condominium Act suggests that condominium corporations should not
be put to unnecessary expense. In effect these applications are
lawsuits among owners of, in part, a shared asset.

On the other hand, disputes do arise and sometimes have to come to
court. Costs to the corporation in the amount of $7,932.38.

There was a 12 day trial to hear these three actions that started in
2007.

Mr. Lahrkamp is a unit owner at the Empire Plaza Condos at 33
University Ave. His dispute with about access to condo documents and it
started in 2006 with the condo lobby renovating project.

Mr. Lahrkamp is requesting a large number of documents from 2007 to
2015 and for $1,500; $500 for each claim.

The condo countered with five reasons to deny giving access to the
records including:
• many of the requests are bared by the Limitation Act.
• the proceedings are vexatious.
• this is a fishing expedition & Mr. Lahrkamp is litigating for
sport.

Proxies
The 17 page judgment contains the following important points from a
judgment by Justice Godfrey-2011:

•

A verbal direction by an owner
to add a candidate's name to a proxy does not invalidate the proxy.

•

the addition of a candidate's
name by a third party does not invalidate the proxy.

J Prattas DJ wrote: As a general proposition, proxies are presumed to
be genuine unless evidence is presented to the contrary.

Inspection of
records
A fair reading of the Act would lead one to conclude that the statute
seems generally worded in favour of transparency, openness and
disclosure.

The Transparency Principle is also supported in jurisprudence.

However, the Transparency Principle does not give an owner carte
blanche to make unreasonable demands for records.

A reason to inspect records is not always necessary.

In determining if a request should be granted or not, the criteria to
be used should be objectively applied: what does a reasonable owner
require to inform him/herself about the proper functioning of his/her
condo corporation?

Costs of proxies
The costs for reacted proxies were set at:
$1.00 per reacted page due to the third generation pages required to
insure reacted information cannot be read.
$1.00 per proxy labour costs of reacting the private information.

So a total of $2.00 a page.

Costs of board meeting minutes
The cost of unreacted pages is 25 cents each.
The costs for reacted third generation pages was set at $1.00 a page.
Labour charges allowed was $1.00 per set of minutes.

The condo corporation sought a court order prohibiting Mr. Lahrkamp
from commencing further proceeding against the corporation and persons
affiliated with it, in any court except by leave of a judge of the
Superior Court of Justice.

The dispute between the parties was most recently summarized as a
“long, tortuous, labyrinthine and costly litigation saga.” These court
proceedings have been expensive. The Corporation spent
$158,114.81 defending the small claims proceedings before Deputy
Justice Prattas of which Mr. Lahrkamp paid $19,000 plus HST.

Mr. Lahrkamp has made several unsuccessful attempts to be elected to
the condo's board of directors. In face of this application to have him
declared a vexatious litigant, Mr. Lahrkamp has commenced a further
application against the Corporation by requesting an order restraining
the Corporation from communicating with unit owners in a way that
discourages them from voting for him in an election to the condo's
board and for the appointment of an independent chair of such a meeting.

Judgment
"Mr. Lahrkamp is prohibited from commencing any proceeding in any court
against the Corporation, its present, future or former directors, or
its property manager, except by leave of a judge of the Superior Court
of Justice. Similarly, Mr. Lahrkamp is prohibited from commencing
any action in respect of services provided to the Corporation against
any service provider to the Corporation without notice to the
Corporation and leave of a judge of the Superior Court of Justice."

Mr. Lahrkamp appealed the costs order (for $21,270) made by Deputy Judge J. Prattas of the Small Claims Court on 27 October 2017.

The Plaintiff cannot appeal the merits of the Small Claims order becuase the dispute was for under $2,500.

However, an appeal as to costs may be taken to the Divisional Court. To
read the sections otherwise would be to deprive the Plaintiff of any
right to appeal what is for most ordinary Canadians a substantial sum.
This is a result that is contrary to the interests of justice.

Leave to appeal a costs order should be granted sparingly and only if
the trial judge has made an error in principle or the award is clearly
wrong. Further, the proposed appeal “should raise an issue of some
importance to the administration of justice that goes beyond the
interests of the parties.”

The judge disagreed that the Deputy Judge erred in his costs order
because he failed to consider the principle of proportionality.

The Defendant was requesting its full indemnity costs, fixed in the
amount of $158,114.81, consisting of just over $140,000 in fees and
almost $18,000 in disbursements.

The Deputy Judge recognized that the behaviour of the Plaintiff “cries
out for a significant cost penalty”, but found that the costs awarded
had to reflect that the matter was a Small Claims Court matter, where
the amounts in dispute are lower and where “an unsuccessful litigant
…is not expecting to get hit with a massive legal bill if he/she loses
at trial.”

I also do not find that the proposed appeal raises an issue that goes
beyond the interests of the parties such that leave to appeal should be
granted.